Health Policy Report

New lawmakers were sworn in last Wednesday marking the start of the 116th Congress. Democrats have regained control of the House after winning 40 seats in the 2018 midterm elections, while Republicans will enjoy a boosted 53-47 majority in the Senate after knocking off vulnerable Democratic incumbents in Florida, North Dakota, Indiana, and Missouri. The 116th Congress has already made history for seating a record number of women, as well as welcoming the most racially and ethnically diverse group of lawmakers in Congressional history. A full list of new members can be accessed here.

Despite some early intraparty opposition, Democratic Leader Nancy Pelosi (D-CA) has regained control of the speaker's gavel for the second time. Having secured committee subpoena power, House Democrats have promised that investigations and oversight of the Trump administration will occupy a substantial portion of key committee bandwidth. Speaker Pelosi will also look to shepherd key Democratic policy priorities — such as lower health care costs, campaign finance / “good government” reform, gun safety legislation, and a solution for the Deferred Action on Childhood Arrivals (DACA) program — through the lower chamber.

Meanwhile, Majority Leader Mitch McConnell (R-KY) has retained his post in the Senate following a strong election cycle for Senate Republicans. While Leader McConnell has previously identified entitlement reform and Affordable Care Act (ACA) rollback as legislative goals, the divided Congress complicates the path forward for major policy priorities on both sides of the aisle. The Senate is likely to continue focusing on confirming executive and judicial nominees.

As of this morning, congressional lawmakers are expressing pessimism about reaching a solution to end the partial government shutdown as the funding lapse enters its 17th day. After being sworn in, House Democrats — joined by a handful of Republicans — immediately passed a pair of measures that would end the partial government shutdown without providing additional funding for President Trump's proposed border wall. However, the Senate has no plans to take up the House-passed package after President Trump formally issued a veto threat.

The Week Ahead

With both sides still far apart in talks to end the partial shutdown, House Democrats disclosed the next phase of their funding strategy as they look to put pressure on GOP lawmakers to reopen shuttered parts of the federal government. Speaker Pelosi announced on Saturday that the House will vote on individual government funding bills this week, starting with the Financial Services appropriations bill, which funds the Treasury Department and the IRS. Other spending bills that Democrats will consider this week would reopen the Agriculture Department and the Food and Drug Administration; the Interior Department and the EPA; and the departments of Transportation and Housing and Urban Development. While the strategy may attract some House GOP support, it’s doubtful whether Senate Majority Leader Mitch McConnell will allow a vote on any of these bills absent support from President Trump.

Congressional lawmakers are set to resume legislative business on Tuesday. On the floor, House Democrats have queued up their first wave of suspension bills for the 116th Congress, including a bill that would extend both the Medicaid Money Follows the Person rebalancing demonstration and protections for Medicaid recipients of home and community-based services against spousal impoverishment. In the upper chamber, Senators will begin consideration of a bill (S.1) that would impose sanctions on Syria.

Democratic House to Hold Hearings on Medicare for All, ACA Lawsuit

Last Thursday, the new House Democratic Majority announced that it would hold hearings in the 116th Congress on single-payer healthcare and on the recent federal court decision declaring the Affordable Care Act (ACA) invalid. Rep. Pramila Jayapal (D-WA) is expected to introduce a bill to extend government-funded health coverage to every American, commonly referred to as “Medicare for All.” She said today that Speaker of the House Nancy Pelosi (D-CA) committed to holding hearings on the topic in the House Rules and Budget Committees. Notably, the announced hearings would not be in the Ways & Means or Energy & Commerce Committees, generally thought of as the committees of jurisdiction for healthcare issues. Neither Rep. Frank Pallone (D-NJ) nor Rep. Richard Neal (D-MA), the chairmen of Energy & Commerce and Ways & Means Committees, respectively, have endorsed holding hearings on the proposal, though Rep. Jayapal claimed that Chairman Pallone is “not opposed.”

Chairman Pallone announced the Energy & Commerce Committee would hear testimony on December’s determination by a U.S. District Court Judge that the ACA is unconstitutional. While the decision is widely expected to be overturned by the 5th Circuit Court of Appeals, it has attracted the attention of the new House Democratic Majority. Chairman Pallone’s announcement comes alongside the expected adoption of a rules package by the newly-sworn-in House that would give the Speaker authority to defend the ACA in court. The hearings will focus on the impact of the decision if it were to be upheld. Notably missing from the Energy & Commerce Committee's beginning-of-year agenda are hearings on drug pricing, a priority of the Administration and a topic many Democrats are eager to pursue.

Democratic-led States File Appeal of Affordable Care Act Ruling; House to Intervene in Case

On Thursday, 17 Democratic state attorneys general filed a notice of appeal on the Texas federal judge’s ruling that the Affordable Care Act is unconstitutional. The notice of appeal from these states will pave the way for the 5th U.S. Circuit Court of Appeals in Louisiana to rule on the case. California Attorney General Xavier Becerra said that by appealing U.S. District Judge Reed O'Connor’s decision, the states are standing up for “Americans who count on health care.” He added that he hoped that the Fifth Circuit would decide the case within a year. A week ago Sunday, Judge O’Connor clarified in a ruling that the Affordable Care Act will remain in effect while his decision is appealed.

The House of Representatives also filed a motion yesterday with the federal district court seeking to intervene as a party in the Texas v. United States lawsuit. The House’s motion to intervene was authorized as part of the opening day rules package. Speaker Pelosi stated that the House had taken action “to protect people with pre-existing conditions and all Americans’ health care,” and called the Affordable Care Act the “law of the land.” The motion comes a day after Pelosi promised two votes on intervening in the case; one vote as part of a larger package of rules for the new session of Congress, and another stand-alone vote. The votes are a formality, and are meant to put Republican lawmakers on record, highlighting the political pressure that Democrats hope to put on GOP lawmakers who campaigned last year pledging to support protections for people with pre-existing conditions.

The federal Pain Management Best Practices Inter-Agency Task Force released a draft report December 31st detailing proposed recommendations to advance individualized, patient-centered pain management and reduce the use of opioids for most populations. Task Force Chair and Chief Medical Officer of the Department of Health and Human Services (HHS) Assistant Secretary for Health Vanila M. Singh, MD, MACM noted that the draft report “offers a wide range of treatment modalities with a framework to allow for multidisciplinary, individualized patient-centered care.” The Task Force is suggesting a significantly more holistic approach to pain management, embracing the idea that treatment pathways should be individualized and based on a “biopsychosocial model of care.” Proposed recommendations reviewed various clinical practice guidelines — taking into account public comments from key stakeholders, patients, family members, and the current CDC guidelines — and identified gaps, inconsistencies, and crucial updates.

The report strongly recommends that providers in all care settings develop a multimodal and proactive approach to pain management, of which opioids are only one possible component. Physicians should be asked to first explore alternative services, such as physical therapy, cognitive behavioral therapy, or even complementary options such as acupuncture or tai chi. The Task Force recognized that providers may not have the organizational resources to integrate all alternative solutions into their pain management choices, but it still calls for stricter regulations around opioid dispensing. The Task Force further suggested that a push towards individualized pain management plans and a “recalibration” of the nation’s approach to pain management must ensure those who truly need opioids can still access them.

Notably, the report devotes considerable attention to the impact of the 2016 CDC opioid prescribing guidelines. While recognizing the useful general guidance in it, the report notes that there have been unintended consequences of the guidelines that have resulted in adverse impacts on patients. The report goes on to state that the “CDC guideline was not intended to be model legislation for state legislators to enact.” Instead, the task force recommends “educating stakeholders” about the intent of the guidelines and its “core beneficial aspects” along with pursuing updates to the content of the guideline. Stakeholders will have until April 1, 2019 to submit comments on the draft report. The Task Force is expected to deliver a final report to Congress in May.

HHS Issues Cybersecurity Best Practices for Healthcare Industry

Before closing out the year, on December 28th the Department of Health and Human Services (HHS) released a best practices document entitled “Health Industry Cybersecurity Practices: Managing Threats and Protecting Patients (HICP)." While voluntary, the guidance is presented as a call to action for the healthcare industry and states that industry must “make cybersecurity a priority and make the investments needed to protect its patients.” The four-volume report is designed to raise awareness, provide vetted cybersecurity practices, and move organizations towards consistency in mitigating pressing cybersecurity threats. The HICP also provide guidance on cost-effective methods that healthcare organizations of different sizes and resource levels can use to reduce cybersecurity risks.

Janet Vogel, HHS Acting Chief Information Security Officer, stressed the shared responsibility in addressing cybersecurity, saying, “In all of our efforts, we must recognize and leverage the value of partnerships among government and industry stakeholders to tackle the shared problems collaboratively.” HHS plans to work with industry stakeholders to raise awareness and implement the recommended cybersecurity practices across the sector. The Department also noted that the Public-Private Partnership is an ongoing initiative and the HICP publication will be updated regularly.